Judging

JAMES J. KILPATRICK

July 17, 1991|By JAMES J. KILPATRICK

Washington. -- For the past two weeks, ever since his nomination to the Supreme Court, Clarence Thomas has been the talk of this talkative town. Most of the talk has been political talk. The talk is of Judge Thomas as a black. For a refreshing change, suppose we talk of Mr. Thomas as a judge.

The complaint is heard that Judge Thomas is inexperienced -- that he has served little more than a year as a U.S. circuit judge. The same charge of inexperience could be leveled at half of the judges who have served on the Supreme Court in this century.

By my count, 25 of the 48 justices who have come to the court since 1900 arrived with little or no judicial experience. Some of them are well remembered. Louis Brandeis, Abe Fortas and Lewis Powell had no judicial experience at all. Hugo Black had none to speak of. Felix Frankfurter was a high-ranking bureaucrat. William O. Douglas was chairman of the Securities and Exchange Commission. Earl Warren had been governor of California. All of them left their mark.

There is good reason to believe that Judge Thomas, if he is confirmed, will leave his mark also. I venture that judgment after reading everything he has written for the U.S. Court of Appeals for the District of Columbia. The corpus consists of 17 opinions for the court, one concurring opinion and one dissenting opinion. His writings addressed a nice variety of civil and criminal issues. They show considerable promise.

What should we look for in a Supreme Court nominee? First of all, in my own view, we should look for a sense of judicial restraint. If we want reformers at the federal level -- if we want activists who will pursue specific causes -- we should elect them to the Congress. On the bench we want judges who will seek to determine what the law is, and not what it ought to be.

Secondly, we rightfully may ask for a man or woman with an orderly mind and a lucid pen. At the appellate level, in both state and federal courts, judges are laying down the law for lower courts to follow. The first commandment for an appellate opinion that it be clear. The second is like the first: Be clear, be clear, be clear!

Clarence Thomas qualifies. In one opinion after another, he sounds a theme of judicial restraint. In June of last year, Judge Thomas wrote for the court in a case involving Keith D. Long. The defendant was convicted of possessing cocaine and of ''using or carrying'' a firearm. There was no evidence that Mr. Long carried a gun. The unloaded weapon was tucked into cushions on a sofa. Judge Thomas was urged to give a liberal construction to the verb ''use.'' He declined. ''Use,'' he said, means use.

In another case, this one involving the Otis Elevator Co., Judge Thomas again gave a strict reading to statutory law. Here the question went to interpretation of the word ''operator.'' Judge Thomas saw no need for interpretation. Under the Federal Mine Safety Act, an operator is an operator is an operator.

Perhaps the clearest exposition of his judicial philosophy came in a case appealed from the Interstate Commerce Commission. The case involved ferry service in Long Island Sound. A key question was whether the ICC's mandate to promote ''efficient'' transportation embraces a power to consider environmental impact. Two of Judge Thomas' colleagues said yes. Judge Thomas, dissenting, said no.

Should the ICC ponder the effects of its actions on the ''increasingly fragile'' waters of the Sound? Said Judge Thomas: ''I agree that as a matter of policy, it probably should. As a matter of law, however, the Commission has no power to regulate ferries for environmental reasons.''

Turning to another aspect of the case, Judge Thomas observed for the record that ''federal courts are courts of limited jurisdiction.'' If jurisdiction does not exist, federal judges have no authority to exercise it, even if everyone -- judges, parties, members of the public -- wants the dispute resolved. ''The truistic constraint on the federal judicial power, then, is this: A federal court may not decide cases when it cannot decide cases, and must determine whether it can, before it may.''

That sentence was packed as tightly as the inside of a walnut. It is a beautiful summation of a topic on which volumes have been written, and it speaks well for Judge Thomas' powers of clear explication.

You will infer correctly that I like what I am learning about the gentleman. He is my kind of thinker and my kind of writer. He has an orderly and a reasoning mind.